International surrogacy and the need for early Immigration advice

You have made the decision to embark upon a surrogacy arrangement abroad and you have spent a lot of time researching clinics, success rates and costings.

You have a feeling that you should probably get some legal advice and you may have undertaken a bit of research online or spoken to a specialist fertility solicitor.

But have you obtained Immigration advice? Should you? When?

When considering an international surrogacy arrangement immigration advice is essential, because ultimately once you have your new bundle of joy in your arms you’re going to want to bring them home, and quickly!

It is incredibly important that before entering into any surrogacy arrangement abroad, you ensure that you will be able to get the baby back into the UK and fit the criteria to apply for a Parental Order.

The difficulties that can be faced, if this is not at the forefront of your investigations, were considered in the recent case of Y and another v W and another [2017] EWFC 60.

The parties to this case had a complicated history. Neither party were UK nationals, although they both subsequently acquired British citizenship and passports. The surrogacy arrangement and birth took place in the US. The first applicant was the child’s biological father. At the time the application for a Parental Order was made both parties stated that they were domiciled in the UK and living in their London flat, but as they did not attend the hearing the matter was adjourned. In 2015 the family were living in the US, but the second applicant struggled to find a job and returned to London. The parties then separated and by the time the Parental Order proceedings were re-visited divorce proceedings were also ongoing in London. All but two of the criteria under the HFEA 2008, s.54 for a parental order had been met. The two in issue were, whether at least one applicant was domiciled in the UK, and whether the child’s home was with the applicants. Both requirements need to be satisfied both when the application is made and also when the court makes the order.

The second applicant argued that the UK was his domicile of choice at the time of the application and now, and he suggested a wide interpretation of ‘home’ to include a situation where the child was living in another jurisdiction and not having contact.

The burden to prove his domicile of choice rested on the second applicant. After a detailed consideration of the evidence the Court held that at the time of the application he had not had a domicile of choice in the UK. The application was therefore refused on this sole issue.

This is the first reported case where there has been a dispute between the applicants in relation to the order. Ordinarily the applicants would be unified. Notwithstanding this, the important point this case makes is that domicile is a legal concept and is dependant on the facts of the case. Specialised surrogacy and immigration advice is needed from the outset.

We are here to help if you are considering an international surrogacy arrangement as we have experts in fertility law and immigration and we work together as a team to give you bespoke advice.

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